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Insurance And Animal Bites

Question: My condominium association is overrun with dogs. We are concerned that someone will be injured, and we will be sued because we did not impose the proper precautions. What should we do? Anne.

Answer: Over 4.5 million people are bitten by dogs each year, and according to the Centers for Disease and Prevention (CDC) almost half were children. And 1 out of 5 bites become infected, with such diseases as rabies, MRSA -- a type of Staph infection, or different types of bacteria such as capnocytophaga or pasteurella.

In fairness to dog owners, the CDC reported that during the early part of this century, more cats than dogs were determined to be rabid. "The majority of these cases were associated with spillover infection from raccoons in the Eastern United States," CDC said, "and the larger number of rabied-infected cats might be attributed to fewer cat vaccination laws, fewer leash laws and the roaming habits of cats."

Typically when a person is bitten -- and is infected or severely injured -- an insurance claim will be filed. According to the Insurance Information Institute, there were over 15,000 claims -- in an average amount of $37,214 -- made in 2015. Homeowners in California filed the most claims; fortunately, none of us in the Washington metropolitan area made the top ten list of dog bite claims.

Because of the volume of claims, many insurance companies are now refusing to insure homeowners (or community associations) where certain brands of dogs are present. Dogs such as pit bulls, rottweilers, akitas and chow-chows are often labeled as "dangerous" and insurance companies will either exclude injuries from these dogs or significantly increase the annual premium. You should immediately confirm with your insurance agent whether your policy covers dog bites, and from all kinds of dogs.

For years, the law around the country was called the "one-bite rule". Owners -- regardless of the kind of animal -- would only be held responsible (and liable) for injuries caused if the owner knew or should have known the dog has dangerous propensities abnormal to its class. The rule originated in England, and was adopted as the common law here in the United States.

Virginia still follows this rule. However, the owner may face criminal penalties if a "dangerous dog" causes injury or death. And all of the surrounding counties have some form of "leash law", requiring a dog to be on a leash at all times when outside of the home environment.

Additionally, all dogs over four months old must be properly registered with the local county.

In the District of Columbia, dogs must be leashed, vaccinated and registered. The Mayor -- acting through one of her agencies -- has the power to impound a dangerous animal, defined as an animal that because of specific training or demonstrated behavior threatens the health or safety of the public. The "one-bite" rule does not apply; if a dog injures a person while at large, lack of knowledge of the dog's vicious propensity will not necessarily be a defense; the court will look at all of the facts in order to determine if the owner was negligent.

Maryland has an interesting dog law history. In 2012, the highest court in the state ruled that pit bulls are "inherently dangerous"and such a dog owner could be held to strict liability in the event of a dog bite. According to the court, "it is not necessary that the (pit bulls owner) have actual knowledge that the specific pit bull involved is dangerous".

Pit bull owners -- and many other dog lovers -- rose up in arms, claiming this law unfairly singled out specific breeds. Accordingly, the Maryland legislature enacted a law that in essence repealed the high court ruling, thereby adopting a strict liability approach for any dangerous animal. According to the new law, dangerous dog is one, that without provocation, has killed or inflicted severe injury on a person. The law does, however, allow the dog owner to claim the defense of contributory negligence; the plaintiff cannot win if he contributed in any way to the dog bite.

Maryland is unique in that the state law governs the specific licensing and other regulations certain counties may adopt or enforce. And many of the local counties, have, in fact, determined certain dogs as "dangerous.

What can your association do? Adopt a rule that all dogs must be leashed when outside of the homeowner's property, and require that all dogs register with the association, and show proof that the dog has been properly vaccinated. Furthermore, the rule should state that if any one is bitten by a dog, regardless of whether it was on a leash, the owner will be subject to a hearing and a possible fine. Furthermore, if any more incidents occur, unless the dog owner agrees to muzzle the dog when outside, the dog can be permanently removed from the area. In some cases, legal action may be necessary.

And most importantly, the Board should confirm that the association has the necessary insurance coverage. People sleep better knowing there is insurance.

In Maryland, the state dog is the Chesapeake Bay Retriever; the American Foxhound is the Virginia state dog. There is no such "State" dog in Washington.

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of Kass, Mitek & Kass, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.